Category Archives: Forensic controls

We had hope, back in 2009, when the National Academy of Sciences report Forensic Science in the United States; A Path Forward was published, that there might finally be some remedy for all the junk science being used to convict innocent people. The report painted a scathing picture of the lack of true science contained in, and the invalidity of, traditional forensic disciplines; the sole exception being DNA. The report did spawn the creation of the Federal Commission on Forensic Science, which has proven, over the last three years, to be a totally toothless tiger, accomplishing essentially nothing.

Now recently, the President’s Council of Advisors on Science and Technology has issued an additional report that is highly condemning of current forensic practices. You can see the PCAST report here: pcast_forensic_science_report_final

HOWEVER, even in light of this recent report, both the FBI and the Department of Justice have stated they have no intention of changing the way they currently address forensics.

Please see the Intercept article, FBI AND DOJ VOW TO CONTINUE USING JUNK SCIENCE REJECTED BY WHITE HOUSE REPORT, by Jordan Smith here.

Johnson, Wheatt, Glover – this was the very first case I worked on with the Ohio Innocence Project eight and a half years ago. At the time, it was a GSR case (gunshot residue). The GSR evidence was always highly questionable, but it was a major factor in their conviction. As it turns out, not only was the GSR evidence bogus, but the case is also an example of egregious prosecutorial misconduct.

Please see the story by Maurice Possley on the National Registry of Exonerations website here.

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The National Academy of Science’s landmark report, Strengthening Forensic Science in the United States, A Path Forward, states on page 7 that (nuclear) DNA is the only forensic method “rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”

This is, in fact, a true statement, with some important caveats. Nuclear DNA evidence is unequivocal, provided:

1) There is a single DNA profile present in the sample.

2) A sufficient quantity of genetic material is present in the sample

3) The genetic material in the sample is not too degraded.

4) It’s clear how the evidence arrived at the crime scene.

5) The testing lab makes no errors in its analysis.

6) The sample of genetic material is from a primary transfer, not secondary or tertiary. (Deposited directly by the person indicated by the DNA profile.)

But be aware. For cases in which the biological sample is a mixture of DNA profiles, or if the sample doesn’t contain sufficient genetic material, or if the sample is degraded, you get into the area in which the analyst has to start making judgement calls. And this puts things right back in the same boat with all the other forensic pattern matching evidence – fingerprints, hair and fiber analysis, ballistics & toolmarks, shoe prints, tire tracks, and bite marks – that rely solely upon the individual analyst’s training, knowledge, experience, judgement, … and cognitive biases. A good example of this would be the Amanda Knox case in Italy. You can see our earlier post about this case here, which goes into more of the detail of DNA analysis (including secondary and tertiary transfer).

Please maintain awareness – DNA is trickier than you might think. Just because someone says they have “DNA evidence,” doesn’t mean it’s a ‘slam dunk.’ You really have to dig into the details; and as always, “the devil’s in the details.” The DNA testing lab should provide a “probability of occurrence” statistic which reflects consideration of all of the above provisions. And keep in mind that the lab won’t be able to tell you if they made any errors in their analysis.

CSI – I hate the show. A pile of fictitious forensic junk that has been a burden to innocence work since its inception.

Prosecutors complain about it because they think it instills in the minds of jurors that there needs to be fancy, technical forensic evidence in order to convict a defendant. Maybe so, and if so, this might possibly result in a jury finding a defendant innocent who is actually guilty.

But there is a much more pernicious “other edge” to that sword. My view has always been that it instills in the minds of jurors that fancy, technical, forensic evidence is infallible, even though it may be scientific garbage. And this can, and does, result in a jury finding a defendant guilty who is actually innocent.

Alex Kozinski is a judge on the U.S. Ninth Circuit. He has recently authored an article for the Georgetown Law Journal, which he simply titles “Criminal Law 2.0.” It is a comprehensive review and critique of the flaws and shortcomings of the current US justice system. My opinion is that this article is a masterpiece, a classic. Here is an experienced, seasoned, knowledgable justice system “insider” who has “figured it out.” And not only has he figured it out, but he also has some very good ideas about fixing the problems, or at least some of them. You can see the full text here: Kozinski, Criminal Law 2. I strongly encourage reading the full article.

Here is a topical summary: (Please see the full article for Judge Kozinski’s discussion of each point.)

A. The myths that cause us to think that the justice system is fair and just, when it’s really not.

Eyewitnesses are highly reliable.

Fingerprint evidence is foolproof.

Other types of forensic evidence are scientifically proven and therefore infallible.

DNA evidence is infallible.

Human memories are reliable.

Confessions are infallible because innocent people never confess.

Juries follow instructions.

Prosecutors play fair.

The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.

Police are objective in their investigations.

Guilty pleas are conclusive proof of guilt.

Long sentences deter crime.

B. Recommendations for reform – Juries

Give jurors a written copy of the jury instructions.

Allow jurors to take notes during trial and provide them with a full trial transcript.

This Monday, August 17th at 10pm ET/7p PT, Al Jazeera’s Emmy Award-winning “Fault Lines” investigates how the FBI used the flawed science of microscopic hair analysis to help convict thousands of criminal defendants.

In this new episode, “Under the Microscope: The FBI Hair Cases,” Fault Lines correspondent Josh Rushing and team travel to Savannah, Georgia to meet Joseph Sledge. In 1978,Sledge was convicted of murder, partly based on FBI testimony that his hair was “microscopically alike in all respects” to hairs found at the crime scene. He was released this January, after serving 37 years in prison, when DNA testing proved the hairs used at trial were not his.

As “Fault Lines” reveals, Sledge is among at least 74 Americans who were exonerated after being convicted of a crime involving the forensic science of microscopic hair analysis. “There was no physical evidence tying Joseph to the crime, and the microscopic hair comparison was the closest they could come,” attorney Christine Mumma of the North Carolina Center on Actual Innocence said of Sledge’s case.

Before the advent of DNA testing, the FBI used the technique of hair analysis for decades. Al Jazeera America interviewed former FBI hair examiner Morris Samuel Clark, who said he testified “hundreds of times” in court about hair evidence, and that FBI microscopic hair comparisons were based on “16 different characteristics.” However, with no database with which to compare hairs, Clark conceded that the FBI could not account for how hair characteristics are distributed in the general population.

“The hairs on your head are quite different depending on where they’re selected,” said Dr. Terry Melton, founder of Mitotyping Technologies, a Pennsylvania-based DNA lab. “Microscopy is a very subjective science, and DNA is exactly the opposite.”

In 2012, Dr. Melton’s DNA lab helped overturn convictions for two Washington, D.C.-area men: Kirk Odom, arrested for rape when he was 18 years old, and Santae Tribble, arrested for murder when he was 17. Sandra Levick, the public defender who represented both Odom and Tribble in their appeals, said, “We had all 13 of the hairs that the FBI had examined [in Tribble’s case] sent off [for DNA testing.]” DNA-testing revealed that one of the hairs used at trial belonged to a dog.

In 2012, these high-profile exonerations finally compelled the Department of Justice to conduct a thorough review. In cases reviewed thus far, they have found that 26 out of 28 FBI examiners made false claims at trial. “We can now say, based on a statistically sizable sample of cases they have reviewed, [the FBI] were wrong 95% of the time,” said David Colapinto, an attorney at the National Whistleblower’s Center.

As of April 2015, the Department of Justice says it has reviewed about 1,800 cases – but in 40% of them, it closed the review due to lack of documentation. Officials from Justice and FBI declined to speak on camera for “Fault Lines” but publicly, they say they will notify defense counsel in cases they have reviewed, while declining to release the names of the defendants to the public. But with at least 14 defendants in question already executed or deceased of old age, is justice working too slowly?

Now, a leading White House science advisor has exhorted the National Institute of Standards and Technology (NIST) to eliminate bite mark evidence, because there is, in fact, no science to it at all. See Radley Balko’s recent article in the Washington Post here.

Balko also correctly advocates in his article that we MUST get trial court judges out of the business of being the decision makers about what is, or is not, valid science. “If not a single court in the country to date has been able to rule against a self-evidently absurd field like bite mark matching, why should we continue to entrust the courts to arbitrate the scientific validity of other evidence?“

A decade ago a controversial article in Science Magazine predicted a coming “paradigm shift” that would push forensic sciences toward fundamental change as the result of “[l]egal and scientific forces . . . converging to drive an emerging skepticism about the claims of the traditional forensic individualization sciences.” This article argues that the predicted paradigm shift has occurred. We support our thesis through a deconstruction of the jurisprudence of two of the forensic disciplines implicated in numerous wrongfulconvictions – forensic odontology (bite mark analysis) and forensic hair microscopy – and an examination of a confluence of unprecedented events currently altering the landscape of forensic sciences. The empirical evidence and data gathered here demonstrates that traditional forensic identification techniques, as well as the doctrines supporting them, are ultimately no more than a house of cards built on unvalidated hypotheses and unsubstantiated or non-existent data. Several very serious consequences result, among them that state, and to some extent federal, jurisprudence that stands for the proposition that this type of evidence is admissible is objectively erroneous and must be reevaluated and effectively rejected as valid precedent; and that the long-overdue paradigm shift presents a unique ethical challenge to criminal justice professionals, one that current professional ethics regimes fail to adequately capture, even though fundamental due process norms compel the conclusion that prosecutors, defense attorneys, forensic experts and their respective governing bodies have an ethical, moral and legal duty to revisit affected cases and provide remedies. Put differently, the “path forward” for forensic sciences that the National Academy of Sciences identified in its seminal 2009 report must have a rear-view mirror.

This and other preliminary findings of a study titled ‘The Innocence Audit’ were delivered by John M. Collins Jr., the Chief Managing Editor of Crime Lab Report, at the annual symposium of the American Society of Crime Laboratory Directors (ASCLD) on Thursday, April 30, 2015 in Washington, D.C.

The ends cannot justify the means when the means are fraudulent.

Washington, D.C. (PRWEB) May 06, 2015

A stern warning was issued to crime laboratory administrators that some post-conviction exonerations may have been secured by innocence activists using malicious tactics, or ‘innocence fraud’, creating potential public safety threats as convicted felons are released from prison.

The comments were made by John M. Collins Jr., the Chief Managing Editor of Crime Lab Report, in a speech detailing the preliminary findings of a study titled ‘The Innocence Audit’ at the annual symposium of the American Society of Crime Laboratory Directors (ASCLD) on Thursday, April 30, 2015. The event was held at the Wardman Park Marriott in Washington, D.C.

“Exonerations are extremely serious,” Collins told the audience of approximately 150 guests on the final day of the symposium. “For our criminal justice system to go back and say that the decision of a judge or jury who decided to put a particular individual in prison [was wrong] . . . and suddenly say that the individual shouldn’t be there – and is therefore free to return to life in the public – is very, very serious.”

Collins cited the 2003 exoneration of Steven Avery in Wisconsin as evidence of the public safety significance of exonerations. After being convicted of a 1985 rape in Manitowoc County Circuit Court (86-1831-CR), Avery was released from prison 18 years later with the help of the Wisconsin Innocence Project. But in 2005, two years after his exoneration, Avery was again convicted in Manitowoc County (05-CF-381) for the brutal killing of a young female Auto Trader Magazine photographer.

Collins said the strongest audience reaction seemed to come from his showing of crime scene photographs from the 1991 murder of Jacquetta Thomas in North Carolina. A white Nissan Pathfinder belonging to Gregory Taylor was found stuck in mud within close proximity of the victim’s body. Gregory Taylor was eventually convicted in 1993 in Wake County Superior Court (92CRS7128, 92CRS30701), but exonerated in 2010 and awarded $4.6 million dollars in post-conviction relief. Despite considerable evidence against him, Taylor was exonerated following what Collins argued was a coerced confession of a wayward prison inmate who had a history of confessing to crimes he didn’t commit.

Collins, who has studied overturned convictions for over a decade, also urged new research priorities to better understand what causes erroneous convictions. Among his recommendations was a call to evaluate drug use and addiction on the part of erroneously convicted felons, which Collins says is a “clear and consistent trend” worthy of study.

In the mean time, Collins hopes that The Innocence Audit will open people’s eyes to what goes on behind the scenes when activists are fighting to secure exonerations. “Our study is producing evidence that Innocence Fraud is real,” Collins says. “But it can be corrected with education and better standards of care for post-conviction activists and litigators. The ends cannot justify the means when the means are fraudulent.”

Crime Lab Report, now in its 9th year, is an independent quarterly publication focusing on media and industry affairs in forensic science. It is edited and distributed by the Forensic Foundations Group, which is based near Lansing, Michigan.

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We (I) haven’t posted here about forensics for some time, and the pot is long overdue for a stir. This post was triggered by a recent piece in the NY Times – Fix the Flaws in Forensic Science – see that NY Times story here. The Times story was in turn triggered by the recent “announcement” (admission) by the FBI that FBI agents had been giving scientifically unsupportable testimony regarding microscopic hair comparison in thousands of cases for decades.

Because of a belief and fear that much of forensics was flawed, the NAS Report (National Academy of Sciences), Forensic Science in the United States, A Path Forward, was commissioned by Congress in Fall of 2005. The report was published in 2009. The report issued a scathing condemnation of the current state of forensic “science.” It was, of course met, with a firestorm of resistance from the forensic and prosecutorial communities. Regardless, the US Department of Justice and the National Institute of Standards and Technology announced the joint creation of a National Commission of Forensic Science (NCFS) in 2013 – see previous WCB posts here, and here.

The NCFS did not hold its first meeting until February, 2014. The Commission released its first nine drafts of policy statements for public comment in October, 2014. In January, 2015, it officially adopted three of those statements. The adopted policies are highlighted in the list below:

While this has been going on, the sole federal judge on the commission, Jed Rakoff, resigned just last January in protest over the Justice Department’s position on an issue that would continue to favor prosecutors at the expense of full pretrial evidence exchange. There has since been an accommodation reached, but I suspect this is indicative of the Justice Department’s opposition to truly changing anything. This also causes me to wonder greatly about the objectivity of all the commission members.

Keep in mind also, that the commission is only empowered to make policy recommendations. It has no powers of oversight or enforcement, and no way to administer the adoption of its recommendations. My reading of the “tea leaves” here is that the advocates for the Justice Department and the existing forensic community have successfully kept the commission mired in politics and committees. So … there you have it. Six years after the publication of the NAS Report, a federal commission with no powers has adopted three policy recommendations.

In the meantime, the traditional forensic science community has been motoring along as if the NAS Report never happened. At the most recent American Academy of Forensic Sciences meeting, there was an active session on forensic odontology (bite mark analysis); a discipline for which the NAS Report states there is absolutely no scientific basis.

The Guardian has effectively put a human face here on the tragedy of the FBI’s admission this week that its agents presented flawed testimony in almost every trial in which they testified against criminal defendants for more than two decades before 2000.

The face is that of George Perrot, whose case was previously covered on the Wrongful Convictions Blog here and in which, it should be noted, this writer has played a small role.

Perrot was convicted as a teenager on rape charges in 1985 greatly on the testimony of FBI agent Wayne Oakes that a hair found on the victim’s bed was similar to a known sample of Perrot’s hair. It didn’t matter to the jury that the elderly victim said that the rape didn’t occur on the bed or that the long-haired, bearded Perrot didn’t resemble the short-haired, clean-shaven man who raped her. Oakes’ testimony was enough, an appeals court later ruled, to put Perrot behind bars, where he has languished for 30 years.

Thanks to the pro-bono work of the Ropes & Gray law firm, Perrot is back in court trying to clear his name, but Massachusetts prosecutors are still defending his conviction. They say Perrot did not file his claim in a timely manner and that there is other evidence of his guilt — a common refrain that many others convicted on the FBI’s hair-comparison testimony are sure to hear in the coming months and years as their cases make it into court.